5/25/2006

As a bill spearheaded by Gov. Sonny Perdue that would address eminent domain works its way through the state legislature at press time, local developers and officials see the legislation as a step in the right direction.

"We need to do something to close the loophole and protect property rights," says Rep. Donna Sheldon (R-Dacula).

Protecting property rights is exactly what the proposed legislation is designed to do. The bill, called the Private Property Protection Act, would tighten the definition of "public use" in order to reduce governmental ability to force landowners off their properties. Eminent domain has come under increasing scrutiny in recent years as governments around the country have expanded their definition of public use, enabling them to seize property not just for infrastructure projects or park land but for redevelopment  knocking down existing homes to build more expensive communities and businesses, which in turn provide greater tax revenue. If owners don't sell their land at what is deemed to be fair market value, government has the option of condemning property and leaving owners with nothing.

The new private property bill specifically addresses the increased tax revenue issue. It also gives the former owners the right to repurchase their condemned property for fair market value within a five-year period if that property has not been put to the stated use for which the land was taken. The legislation also places the burden of proof regarding the legality of the property seizure on the entity condemning the property.

Gwinnett developers and officials are hopeful that the proposed amendment will stop future abuse of the eminent domain rules.

"I don't think what has happened in the past would happen under this bill," says development guru and former Georgia Department of Transportation Commissioner Wayne Shackelford. He adds that eminent domain is "absolutely essential" and, when conducted properly, can and should be used when necessary for "the common good" of the community.

Gwinnett County Commission Chairman Charles Bannister also supports the use of eminent domain but agrees that the bill will solve some abuses associated with it.

"In the process of doing business, I honestly believe local governments need to do it," he says. "In general, as I review the bill, it covers all points of contention." He adds, however, that the bill that is passed might be very different from the version that is making the rounds through the House now. "What goes in is not always what comes out," he says. "And we need to watch it closely."

Others are not so optimistic about the bill.

"We think the bill needs fine tuning," says Paul Radford, deputy director of the Georgia Municipal Association, an organization that supports municipal governments in Georgia. "The blight definition is narrowly defined. There is no provision for dealing with vacant property, and the provision that allows owners to buy back their property if it isn't put to the stated use is almost impractical and unworkable."

Perhaps the biggest misuse of eminent domain involves the almost arbitrary usage of the term 'blight', which the bill would more narrowly define. Under the new legislation, a property that meets any two of the following six conditions as shown by government statistics would be termed "blighted" if:

The property is substandard, deteriorating, containing inadequate light, ventilation or air sanitation.

The property is a threat to life or other property due to fire, flood, tornado, storm or other natural catastrophe.

The taxes on the property exceed the fair value of the land.

Development is hindered by airport or transportation noise.

The property has been identified by any state or federal environmental agency as needing remedial investigation.

The property is being put to illegal use or not being maintained according to government codes, resulting in crime, juvenile delinquency, infant mortality or ill health.

Property that is esthetically substandard would not be defined as blighted, unless the overall condition of the property resulted in crime, infant mortality or juvenile delinquency.

Radford said that his organization is a "strong advocate of property rights," and he agrees with the use of eminent domain as a necessary development tool, but only if "city officials use this tool as an absolute last resort."

Radford also credits Perdue for taking the lead on the legislation. "We're appreciative of the Governor addressing this issue," he says.

Whatever the final bill looks like, it seems that eminent domain is here to stay.

"I think it has its place and is necessary," says developer Emory Morsberger of the Morsberger Group, though he doesn't believe it should be used to increase tax revenue.

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